Submitted on Briefs: October 16, 2013
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-160 Honorable John W. Larson, Presiding Judge.
For Appellant: Wade Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender; Helena, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant Attorney General; Helena, Montana Fred R. Van Valkenburg, Missoula County Attorney; Jennifer Clark, Deputy County Attorney; Missoula, Montana.
Jim Rice Justice
¶1 Katie Irene Garding (Garding) appeals from the Judgment entered by the Fourth Judicial District Court, Missoula County, regarding her conviction for the offenses of vehicular homicide while under the influence, failure to stop immediately at the scene of an accident involving an injured person, and driving without a valid driver's license. We affirm and address the following issues on appeal:
¶2 1. Did the District Court err by limiting the Defendant's cross-examination of the State's informant?
¶3 2. Did the District Court err by preventing the Defendant's expert forensic pathologist from testifying about matters not disclosed through discovery?
¶4 3. Did the District Court err by permitting an undisclosed expert witness to testify for the State?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 This case involves the tragic death of Bronson Parsons (Parsons) due to injuries sustained during a hit-and-run vehicle-pedestrian accident in the early morning hours of January 1, 2008. At approximately 1:40 a.m., Parsons and Daniel Barry (Barry) were walking along the right-hand shoulder of Highway 200 and toward the Reno Casino (the Reno) in East Missoula to participate in the Bar's last call of the night. When they were about 300 yards from the Reno, a dark-colored SUV struck Parsons from behind and carried him a short distance before he slid off the side of the hood. The SUV veered off the road, corrected itself, and then accelerated westward toward Missoula. Parsons remained on his back in the roadway, having sustained fatal blunt force trauma to the back of his head.
¶6 In the darkness, Barry was able to identify the fleeing vehicle only as a bigger, dark-colored SUV or truck. Barry also thought the vehicle had a deer guard or something else reinforcing its frontend. Deborah Baylor (Baylor), who was driving east along Highway 200 at the time of the collision, saw a dark-colored vehicle strike Parsons with its passenger side. Baylor explained that she heard a pop or a bang and then saw Parsons fly off the side of the vehicle and land in the roadway. Neither Baylor nor Barry heard any glass breaking during the accident.
¶7 Trooper Novak of the Montana Highway Patrol soon arrived at the scene and conducted an investigation. He looked for anything of evidentiary value, such as broken glass or damaged vehicle parts, but was only able to find a set of tire tracks on the shoulder of the road, which he later photographed. Trooper Novak was not able to precisely identify the point of impact.
¶8 Other law enforcement officers were alerted about the accident, and about ten hours later Trooper Hader of the Montana Highway Patrol stopped Garding to investigate her cracked windshield. Garding was driving a black 1994 Chevy Blazer with a unique, aftermarket steel bumper protruding from the frontend. Trooper Hader then believed that the accident had involved a full-frontal crash and that the subject vehicle would have extensive frontend damage. When Trooper Hader did not observe any such damage, he cited Garding for driving without a license and arrested her boyfriend, James Bordeaux (Bordeaux), who was also in the vehicle, on an out-of-state warrant. Law enforcement would take no further action against Garding for some time.
¶9 Law enforcement initially suspected that Gabrielle Weiss (Weiss) had hit Parsons with her vehicle, a green 1995 S-10 Chevy Blazer, due to an unusual 911 call that she placed around the time of the accident. During that call Weiss mistakenly identified herself as being in East Missoula that night. Law enforcement later confirmed that she had actually been in the Blue Mountain area that night. During the investigation, law enforcement impounded Weiss's vehicle and submitted its bumper to the FBI for laboratory examination. Although the bumper contained a fabric impression from a pair of jeans,  no conclusive results were obtained. Weiss was not charged and the case went cold.
¶10 On December 22, 2008, almost one year after the accident, Tueray Cornell (Cornell), then an inmate at the Missoula County Detention Center, contacted Trooper Hader to report that he had information about the incident. Cornell explained that Garding had driven to his house on January 1, 2008, and told him that she had hit a deer. Cornell used duct tape to repair Garding's broken light cover by taping it back in place. Following up on this lead, law enforcement discovered that Garding's Blazer had been repossessed and resold. The new owner explained that the Blazer had broken down almost immediately upon purchase, but otherwise remained in the same condition. The right front fog lamp was affixed with duct tape.
¶11 Meanwhile, Bordeaux, one of Garding's passengers on the night of the accident and now her ex-boyfriend, was incarcerated in Missoula on a burglary charge. At the omnibus hearing in Bordeaux's case, the State checked the omnibus hearing form to indicate that it intended to pursue a Persistent Felony Offender (PFO) designation under § 46-18-502(1), MCA, against Bordeaux, which would permit a district court to sentence him to up to 100 years in prison. However, the State did not discuss or pursue this possibility further.
¶12 As part of the investigation into Garding, Trooper Hader contacted Bordeaux, who related that on the day of the accident, Bordeaux and Garding started drinking around 11:00 a.m. After several hours of drinking at Red's Bar in Missoula, they met Paul McFarling (McFarling) and drove to East Missoula in Garding's Blazer, drinking Black Velvet and smoking marijuana on the way. The three continued to drink throughout the afternoon and evening, including at the Reno. Sometime after midnight, they drove to Red's Bar in Missoula and remained there until 1:30 a.m. They then returned to East Missoula in Garding's Blazer to try to purchase cocaine. McFarling, who was sitting in the backseat, pulled out a gun and attempted to show it to Garding and Bordeaux. Bordeaux, who was sitting in the front passenger's seat, turned around and started arguing with McFarling, threatening to "slap him" and telling Garding to pull over so he could kick McFarling out of the car. Possibly distracted by these events, Garding struck Parsons from behind with the passenger's side of her vehicle. Bordeaux stated that he spun around in his seat just in time to see a person flying through the air and hear Garding say, "I hit somebody." Garding did not stop the vehicle, but instead drove back to Missoula and stayed the night at McFarling's house.
¶13 In exchange for providing this testimony, the State offered Bordeaux a plea deal whereby he would testify against Garding and plead guilty to the burglary, and in return, the State would recommend that he receive a five-year suspended sentence. The possible PFO designation was not discussed or mentioned in the parties' written plea agreement. Obtaining Bordeaux's cooperation, the State charged Garding with Parsons' death.
¶14 At trial, Garding sought to impeach Bordeaux's credibility. In her opening statement, Garding's counsel stated, "the State wants you to believe that [Bordeaux] did not get any deal for his original sentence. As I mentioned, he was facing 20 years in prison [for burglary], plus an additional 5 to 100 years for being a persistent felony offender." However, when Garding's counsel began her cross-examination of Bordeaux, the District Court granted the State's objection to any mention of the potential PFO ...